Friday, August 23, 2013

Sexting is a difficult issue. (Sexting involves images, both still and video. Sexual communications sent in textual form, are called “cybering.”) It is problematic for three special reasons, beyond the obvious of images of nude minors or those engaged in sexual activities:

1.Sexting images are often used to attack those featured in those images by cyberbullies. Those in them are more vulnerable to bullying and cyberbullying.

2.Given the nature of the images and the desire to keep parents from learning about them, many minors are “sextorted” into engaging in sexual acts or sending more images to keep their blackmailer quiet.

3.The minors taking, sending or possessing the sexting images of other minors can be charged with child pornography and sexual exploitation crimes, such as the production, distribution and possession of child pornography, or endangerment of a minor.

Although “sexting” is a more recent trend, given the enhanced ability of cell phones and mobile devices to take and share images, the practice of taking nude or sexually provocative digital images and sharing them with others has been going on for more than 11 years. Parry Aftab worked on her first case of a teen voluntarily sharing a sexual video in 1998.

A young teen, to get the attention of a teen boy she liked, took and shared a digital video with him. It showed her performing mock oral sex and touching herself while nude. The boy received the video, and while he was not interested in seeing her, shared the video with his friends. The video eventually made its way to the Internet and peer-to-peer video sharing sites. Taking a sexual video and sharing it with someone was harder then. Now anyone armed with a video-capable cell phone can take and share the video with the click of a few keys. It can be hosted for free and shared with everyone or a select few or individual. And it is becoming commonplace enough that the shock value no longer exists.

To date, the typical approach to preventing and addressing sexting has been lectures about morals and warnings of the legal risks involved. But when pitched against raging hormones and love, these approaches are not very effective.

While we have to continue to create awareness and improved understanding of the risks involved, Parry Aftab believes we have to consider and adopt new laws or revisions to existing ones to deal with the reality that our young people are taking, sharing and possessing sexual images of their partners, their friends and others they know in the same way they may engage in sexual activities. The registered sex offender laws were never designed to include minors who are engaging, voluntarily, in taking and sharing sexual images of themselves as sex offenders. The child pornography laws were not designed to charge minors engaged in voluntary sexting activities.

Years ago, when the statutory rape laws were amended to reflect the reality of minors engaging in voluntary sexual relations with other minors, we addressed a similar issue. Until then, boyfriend and girlfriend could not legally engage in consensual sexual relations if they were underage. We relied on prosecutorial discretion and law enforcement common sense to prevent injustices before the laws were changed. Now, it is especially ironic that because of the updating of those laws and the existence of older child pornography and sexual exploitation of minors laws, a minor can be charged with taking a picture of a legal sex act, even if it is fully-voluntary. There is one inescapable solution -the child pornography laws should be updated to mirror the statutory rape laws.

Some states have done that, or sought to address it in similar ways. Some states decriminalized voluntary sexting of minors or reduced the severity of charges when the acts are voluntary. Illinois changed their juvenile adjudication laws to include juveniles charged with voluntary sexting offenses, effective January 1, 2011. While the law does not preempt child pornography or other more serious changes, it provides authority for those determining the dispositional orders to mandate counseling or community service. (705 ILCS 405/3-40, http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=096-1087, accessed January 13, 2011.)

Others provide a defense if the minor can prove that they did not solicit a sexting image and were intending to delete it or report it. Arizona’s law, adopted in May 2010 does a good job of that. In its early legislative history, it mentions Philip’s case. He was an 18 year old in Florida who broadcast his ex-girlfriend’s nude image to all of her friends and family after a bad breakup. She was still under 18, and he was prosecuted as distributing child pornography. (See the MTV Sexting special When Privates Go Public [insert link].) While the law makes taking the image or sharing it a class 2 misdemeanor, those receiving an image who intend to get rid of it or report it are exempt from the law. (Title 8, Chapter 3, Article 1, Arizona Revised Statutes, Section 8-309, http://www.azleg.gov/FormatDocument.asp?inDoc=/legtext/49leg/2r/laws/0276.htm, accessed January 13, 2011.)

Vermont’s law, adopted in 2009, expressly exempts minors taking sexting images of themselves from being charged under the child pornography state laws or required to register as a sex offender. It also prevents those possessing sexting images transmitted to them from the minor who took them of themselves from being charged under those laws or required to register as a sex offender if they took “reasonable steps” to destroy or delete them (whether or not successful). Prosecutions of minors are reserved for the Family Court system and juvenile proceedings. Those convicted will have their records expunged when they reach the age of 18.
Ironically, and probably in reaction to reports of consensual sexting and one of the couple having turned 18 when the actions occurred, adults who have received an image from the minor taking a sext and who have taken reasonable steps to delete or destroy them only face a maximum $300 fine and up to 6 months imprisonment and are exempt from sex offender registry laws. (Note that first offenders are exempt from prosecution under the more serious child pornography laws, but even multiple offenders are exempt from the laws requiring sex offender registration for these acts, unless charged under other sexual exploitation laws.) Parry Aftab believes that while some of these changes are good, others may have gone too far, especially when adults are involved.

Some states didn’t change the existing laws, but clarified that prosecutors have more discretion when minors are involved with consensual sexting. Ohio took that tact, and with the assistance and support of Cynthia Logan and Parry Aftab a bill was written and adopted.

And at least one state, NJ, adopted a diversionary program for minors engaged in sexting. (A “diversionary program” involves minor crimes (typically not felonies), first offenders not likely to reoffend and requires that the accused staying out of trouble for a certain period of time. It is sometimes called “early intervention”, “adjournments pending dismissal” or similar procedural descriptions. If there is no re-offense, the matter is dismissed with prejudice and there is no criminal record or penalty.) (Assembly, No. 4069 , State of New Jersey, 213th Legislature, introduced June 11, 2009, sponsored by Assemblywoman Pamela R. Lampitt, District 6 (Camden), http://www.njleg.state.nj.us/2008/Bills/A4500/4069_I1.HTM, accessed January 13, 2011.) This approach combines education with adjudication, a powerful combination.

Parry believes that diversionary problems blend the best of both providing justice and common sense when cyberbullying or sexting laws are implicated. While everyone’s first reaction may be to rescind laws relating to minors taking, sharing or possessing sexual images of each other, we need to be cognizant of the fact that sextortion is a real risk, adults prey on minors using any vulnerability they can discover and that many young people use the sext as a weapon to destroy the reputation of other minors, driving at least three to suicide.
Others may believe that the laws are fine as written, hoping that prosecutorial discretion is a sufficient safeguard against injustice. But we have seen several cases where the prosecutors are part of the problem, not the solution. And the child pornography sentencing guidelines for federal cases are a real problem, even for those of us who believe that child pornography crimes should be strenuously prosecuted and offenders receive stiff penalties worthy of the crime committed.

The importance of state and federal law changes to either provide more discretion or prosecutors or diversionary programs and family court alternatives is highlighted by a quick review of the US federal child pornography sentencing guidelines. While under review based on criticism that the sentencing guidelines established by Congress are over-reaching and excessive, they remain in effect (although may not be binding). Individuals found guilty receive at least 5 years minimum sentence, enhanced for use of the Internet or digital devices, contact with the minor and other factors in common between voluntary sexting among minors and those of sexual predators and child sexual exploitation. (To read more about the history of these guidelines, visit http://www.ussc.gov/Research/Research_Projects/Sex_Offenses/20091030_History_Child_Pornography_Guidelines.pdf.)

Child pornography, under the US federal laws, is:

the visual depiction of a person under the age of 18 engaged in sexually explicit conduct. See 18 U.S.C. §§ 2256(1) and (8). This means that any image of a child engaged in sexually explicit conduct is illegal contraband. Notably, the legal definition of sexually explicit conduct does not require that an image depict a child engaging in sexual activity. See 18 U.S.C. § 2256(2). A picture of a naked child may constitute illegal child pornography if it is sufficiently sexually suggestive. In addition, for purposes of the child pornography statutes, federal law considers a person under the age of 18 to be a child. See 18 U.S.C. § 2256(1).

It is irrelevant that the age of consent for sexual activity in a given state might be lower than 18. A visual depiction for purposes of the federal child pornography laws includes a photograph or videotape, including undeveloped film or videotape, as well as data stored electronically which can be converted into a visual image. For example, images of children engaged in sexually explicit conduct stored on a computer disk are considered visual depictions.

(Quoting the Department of Justice’s Child Exploitation and Obscenity Section’s Citizen's Guide to United States Federal Child Exploitation Laws, http://www.justice.gov/criminal/ceos/citizensguide_porn.html, accessed on January 14, 2011)

About Parry

Parry Aftab is an Internet privacy and security lawyer and founded and runs WiredSafety.org, the world's first cybersafety group. She is a regular resource for TV news and talk shows and print journalism. Her main site, aftab.com, contains more information about her work.
She provides best practices advice to industry leaders and is the Managing Director of WiredTrust, a risk management consulting firm and home of the Socially Safe Seal.